ACLU Responds to Legal Concerns Raised by Street Chronicle Vendor

By Kaylie Kinney

Attorney from the American Civil Liberties Union of Ohio

Editor’s Note:  Greg S., a vendor with the Cleveland Street Chronicle wrote a commentary appearing on page 12 about problems with the judicial system as it relates to low income litigants.  We asked that he submit a few questions with his commentary and then asked an expert in the community to respond.  Kaylie Kinney responded in writing to some of his concerns in December 2012. 

Greg: Does not having a Law Library in the county jail violate our rights esp. to due process of law?

ACLU responds:  Under current case law, probably not. In 1977, the U.S. Supreme Court held in a case called Bounds v. Smith that inmates do have a constitutional right to access the courts, which includes assistance with preparing and filing legal documents. But in the 1996 case Lewis v. Casey, the Court ruled that this does not necessarily mean inmates have a right to access to a law library or ability to do legal research. The Supreme Court is only concerned about the lack of a law library if an inmate can prove that not having one prevented the inmate from adequately accessing the courts to pursue a legal matter. 

The federal appellate court for the region that includes Ohio, the Sixth Circuit Court of Appeals, followed this reasoning in a 1999 case called Hadix v. Johnson. In that case the Court held that an inmate would have to prove that the lack of legal research materials was the reason a case was not handled properly. However, this is difficult to do since inmates have a right to appointed attorney to deal with cases and research on their behalf.

This issue was also litigated by an inmate from the Cuyahoga County Jail in 2007 without success. The court ruled that not being able to access legal research materials was not unconstitutional and that inmates should accept it as one of the consequences of incarceration. It seems that the right to due process (the required minimum amount a court must do to ensure a person’s constitutional rights are protected) is satisfied by any meaningful access to the court, and that so long as an individual has the opportunity to have an attorney appointed, that individual has meaningful access to the courts.

However, please note that if you feel your rights have been violated, you should not delay in contacting an attorney.

Greg:  What legal right does the county jail have to hold a person for over 5 years on a mistrial without that person receiving a personal bond?  Shouldn’t they have been released after a mistrial or transferred to a better facility?

ACLU: Individuals have a right to a speedy criminal trial. However, mistrials may not always result in a dismissal of charges and release of an inmate. A mistrial can instead result in a plea bargain or a new trial.

The length of time between a mistrial and new trial or plea bargain negotiations varies widely between cases and is very much based on the facts and situation in a given case.

An inmate will remain in the charging county’s jail until sentencing has taken place and the inmate is assigned, depending on the crime, to a state or federal prison facility. If an inmate has not been sentenced, he or she will not be assigned to a prison.

If you feel your rights have been violated, please do not delay in contacting an attorney.

Greg: Who is responsible for making sure that people don’t spend unreasonable amounts of time in the county jail?

ACLU: There are several agencies in Cuyahoga County involving judges, prosecutors, public defenders and other interested parties working in this issue. For more information, contact the Office of the Ohio Public Defender. Please note that this is not a guarantee that the Ohio Public Defender will offer assistance. If you feel your rights have been violated, please do not delay in contacting an attorney.

Current Cleveland police department policy requires that the city police charge or release suspects within 36 hours after their arrest. Suspects must be brought before a judge within 48 hours of arrest under a judicial order issued by Cleveland Municipal Judge Ronald Adrine.

Greg: Don’t we have a right to effective attorney in defense of these criminal charges?  With these public defenders assigned so many cases, meeting them right before appearing before a judge how is this fair?

ACLU: The U.S. Supreme Court has addressed the issue of the effectiveness of attorneys. In the 1984 case Strickland v. Washington, the Court said an attorney is only ineffective when the attorney’s conduct interferes so much with the trial process that the trial was unfairly prejudiced against the person the attorney represented. This is a difficult standard to meet, and cases are rarely overturned on these grounds.

Unfortunately, our courts are filled with low level offenders, and cuts to indigent defense budgets mean there are fewer public defenders to go around. This is not the way our justice system should work, but courts have indicated as long as the defense offered does not interfere with the process it is effective for constitutional purposes.

Greg: Is there any study that shows those that do not take a plea bargain are treated harsher by the County Prosecutor and are being overcharged so that they will plead to a lesser charge?

ACLU: We are not aware of any study on this precise issue. The ACLU of Ohio Foundation, with support from the Drug Policy Alliance, did publish a report, Overcharging, Overspending, Overlooking: Cuyahoga County’s Costly War on Drugs, which shows that low level offenders are frequently over sentenced in Cuyahoga County. In the report we found that fourth and fifth-degree nonviolent felonies constituted 53% of all the county’s prison admission despite the fact that those charges could be reduced to misdemeanors. Meanwhile, similar urban counties have much lower incarceration rates for these low level offenders. Franklin County sends 82% of fifth-degree offenders and 63% of fourth-degree offenders to probation, while Cuyahoga County sends only 66% and 51%. This contributes to other problems, especially prison overcrowding. Ohio prisons are at 132% capacity. Inmates from Cuyahoga County make up 20% of yearly state prison admissions, even though the county has only 10.9% of Ohio’s adult population. There are also race-based inequalities in sentences, with Caucasians more frequently offered jail diversion and reductions to misdemeanor charges. Overall, more than 98% of drug convictions in Cuyahoga County are a result of plea deals. For more information, visit If you feel your rights have been violated, do not delay in contacting an attorney.

Greg: Overall, has the ACLU commented about the poor treatment low income people receive in the criminal justice system and the lack of effective attorneys in the system?

ACLU: The ACLU of Ohio Foundation is interested in the treatment of low income people in the criminal justice system. However, due to our limited resources, we are only able to accept a few cases or projects each year. For example, we have opposed the imprisonment of people who cannot pay fines or court costs and encouraged courts to conduct the required hearings to determine if people coming before the court are low income and are entitled to arrangements including appointed attorney and fine and cost payment plans. Our organization also works for systematic change by advocating for legislation and public policies which respect individuals’ rights. In the past we have worked to oppose excessive laws restricting the rights of sexual offenders, promote better access to attorneys for juvenile defendants and argued in favor of improved medical services for all Ohio inmates. 

If you feel your rights have been violated, or if you wish to continue pursuing these matters, we recommend that you engage a private attorney. Please note these responses are for informational purposes only and is not an offer of legal assistance or advice.

Copyright Cleveland Street Chronicle Cleveland, Ohio January 2013